Allahabad High Court
Smt. Meena vs State Of U.P. And 2 Others on 22 October, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 87 Case :- APPLICATION U/S 482 No. - 14992 of 2020 Applicant :- Smt. Meena Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- M J Akhtar,Viquar Mehdi Zaidi (Senior Advocate) Counsel for Opposite Party :- G.A.,Aishwarya Pratap Singh,Gaurav Kakkar Hon'ble Raj Beer Singh,J.
1. Rejoinder affidavit filed in Court today, is taken on record.
2. Heard Sri V.M. Zaidi, learned Senior Advocate assisted by Sri Yakub Ali, learned counsel for the applicant, Sri Gaurav Kakkar and Sri Aishwarya Pratap Singh, learned counsel for opposite party no. 3, learned A.G.A. for the State. record.
3. This application under Section 482 Cr.P.C. has been filed with the prayer to quash the order dated 28.07.2020 passed by the Chief Judicial Magistrate, Aligarh in case no. 38/12/2018 arising out of case crime no. 0428 of 2017, under Sections 420, 467, 468, 471, 120-B IPC, police station Tappal, district Aligarh as well as to quash the entire proceedings of the aforesaid case.
4. It has been argued by learned Senior Counsel for the applicant that impugned order is against facts and law and thus, not sustainable and the impugned proceedings are abuse of the process of court. It was submitted that applicant is a resident of village Hamidpur, district Aligarh and that grandfather and father of the husband of applicant were holding agricultural land in village Hamidpur as well as in village Gharbara, district Aligarh and that the applicant was granted a patta in land of gata no. 1851 in accordance with law and the proposal of land management committee was duly approved by Collector, Aligarh. However, after that as applicant came to know that her residential address has wrongly been mentioned in allotment letter as village Peepli instead of Hamidpur or Gharbara. The said patta/lease has become final and it has not been cancelled so far. Earlier opposite party no. 3 has moved an application under Section 156(3) Cr.P.C. due to enmity with the family of applicant making false allegations of fraud and forgery in respect of documents pertaining to said allotment, whereas opposite party no. 3 was not a resident of that village, but his application under Section 156(3) Cr.P.C. was rejected. In fact he has filed successive applications under section 156(3) Cr.P.C., which were also rejected. Thereafter on the complaint of opposite party no. 3, an inquiry was conducted and thereafter Additional District Magistrate (Administration), Aligarh has directed opposite party no. 2 to lodge a first information report and the first information report of this case was lodged against the applicant and others. It was submitted that allegations made in first information report are false and baseless and that during investigation, no case was made out against the applicant and thus, police have preferred final report. The informant/opposite party no. 2 did not file any objections or protest petition against final report dated 23.01.2018, but opposite party no. 3, who has no locus standi, has filed a protest petition and thereafter the court below has directed further investigation in the matter. However, the Investigating Officer has again preferred final report. It was submitted that the court below has again directed for further investigation, but again final report dated 15.10.2019 was submitted. The C.J.M., Aligarh has passed the impugned order on protest petition filed by opposite party no. 3 against the third final report, which is against facts and law. It was submitted that the impugned order has been passed on the basis of allegations made by opposite party no. 3 in protest petition without considering the fact that no evidence was collected by Investigating Officer during investigation. The court below has also failed to consider that due approval to said patta was accorded by the concerned S.D.M. Further, the opposite party no. 3 is not the first informant and he is a stranger to the proceedings and thus, the impugned order is based on extraneous material and that the protest petition was not maintainable. Even otherwise the allegations against applicant is in respect of correction of her residential address in allotment of proceedings and that there are no allegations that she has obtained the land in dispute on the basis of forged documents. The said allotment was not challenged by any person and thus, the allotment has become final and that first information report was lodged after about 25 years of alleged allotment. Learned Senior counsel has submitted that the impugned order dated 28.07.2020 is wholly illegal and void and thus, not sustainable in the eye of law and thus, the impugned proceedings are abuse of the process of law. In support of his contentions, learned Senior counsel has relied upon the cases of Sanjay Bansal and Anr. vs. Jawaharlal Vats and Ors. reported in 2009 (1)SCC (Cri) 262, Ram Ayodhya And Ors. v. State of U.P. And Another reported in 2011(75) AcrC 488, Iqbal Ahmad Qureshi v. State of U.P. And Others passed in writ-c no. 200 of 2009 and Om Prakash Verma And Ors. v. State of U.P. And Ors. reported in 2015(1) All WC 560.
5. On the other hand, Sri Gaurav Kakkar, learned counsel for opposite party no. 3 has opposed the application and argued that the first information report of this case was lodged by the S.D.M., Aligarh in pursuance of the order of A.D.M. (Administration), Aligarh after a detailed inquiry. It was submitted that opposite party no. 3 is a resident of village panchayat Hamidpur, district Aligarh and in the year 2015, he was elected as the member of Gram Panchayat Hamidpur. The applicant has not come with clean hands, rather she has concealed material facts. Earlier brother-in-law of applicant, namely, Rishipal has got an illegal patta of land situated in gram panchayat Hamidpur in connivance with gram Pradhan in the year 1996 and thereafter to grab more land of gram panchayat, he has obtained another set of patta of land in the name of applicant and her husband. It was submitted that neither the applicant nor her family members including brother-in-law were eligible for allotment of gram sabha land and the lease/patta was obtained on the basis of forged and fabricated documents. The applicant has shown herself to be resident of gram panchayat Peepli, but actually she was resident of Gram panchayat Hamidpur and later on after obtaining the 'patta' she has moved an application for correction of her permanent address in a well thought manner. It was further submitted that on the compliant of opposite party no. 3, a detailed inquiry was conducted by S.D.M., Aligarh vide report dated 23.06.2017, upon which a direction was made by A.D.M.(Adm.), Aligarh vide order dated 25.06.2017 to register a first information report against the applicant and her other relatives including her brother-in-law Rishipal. After registration of FIR, the opposite party no. 3 was abducted at gun point and he was forced to execute an affidavit in favour of applicant and other accused persons and later on in this regard an FIR was registered against applicant and her other relatives on 05.10.2017. It was submitted that due to the political and bureaucratic connection of applicant, the investigation was concluded in favour of the applicant without any due and proper investigation and that on the complaint of opposite party no. 3, Additional Director General of Police, Agra Zone, Agra has directed Circle Officer (Crime), Agra to inquire the matter and that the concerned Circle Officer has submitted its report pointing several irregularities in the investigation and direction was made for further/re-investigation, but the Investigating Officer again in collusion with accused persons has submitted final report. Learned counsel has also submitted that impugned order is a reasoned and speaking order and that learned Senior Counsel for the applicant could not point out any material illegality or miscarriage of justice regarding the impugned order. It was stated that opposite party no. 3, being member of gram panchayat Hamidpur, has locus to agitate the matter and there is no illegality in the same. Regarding land/disputed patta, no case was pending before the civil court. The material on record makes out a prima facie case under Sections 420, 467, 468, 471, 120-B IPC against the applicant. It was submitted that on the facts of the matter, it is apparent that applicant has got the patta by misrepresenting herself to be resident of gram panchayat Peepli, which makes out a case under Section 420 IPC and as she has submitted forged documents in order to obtain the patta and thus, offence under Section 467, 468, 471 IPC is also made out and thus, the applicant was rightly summoned by the court below.
6. I have considered rival contentions of learned counsel for the parties and perused the record.
7. In the instant matter, perusal of record shows that after investigation, police have preferred final report dated 15.10.2019 and against that report, opposite party no. 3 has preferred a protest petition, on which the impugned order has been passed. Here it would be pertinent to mention that Hon'ble Apex Court in Minu Kumari & Ors Vs. State of Bihar reported in 2006 (4) SCC 359 has observed that when final report is submitted before the Magistrate, he has four options:
"(i) After giving opportunity of being heard to the complainant and after applying mind to the material available in the case diary, accept final report and drop the proceeding.
(ii) After hearing the complainant and going through the record of the police report if satisfied that necessary ingredients of offence are made out on the basis of material collected during investigation the court may summon the accused straight way under Section 190(i)(b) Cr.P.C.
(iii) He may treat the protest petition of the complainant as complaint and proceed to inquire in the light of Chapter XV of Cr.P.C. and if found that there are sufficient material to proceed against the accused persons may summon the accused under Section 204 Cr.P.C. and if not, may dismiss the complaint under Section 203 Cr.P.C.
(iv) After considering the police report and material placed along with protest petition the Magistrate is of the view that further investigation is required in the matter, he may pass an order for further investigation in view of Section 173 (8) of Cr.P.C."
8. In the case of Sanjay Bansal (supra), it has been held as under:
"5. There is no provision in the Code of Criminal Procedure, 1973 (in short the Code) to file a protest petition by the informant who lodged the first information report. But this has been the practice. Absence of a provision in the Code relating to filing of a protest petition has been considered. This Court in Bhagwant Singh v. Commissioner of Police and Another (AIR 1985 SC 1285), stressed on the desirability of intimation being given to the informant when a report made under Section 173 (2) is under consideration. The Court held as follows:
There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under Sub-Section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submission to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under Sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report...
6. Therefore, there is no shadow of doubt that the informant is entitled to a notice and an opportunity to be heard at the time of consideration of the report. This Court further held that the position is different so far as an injured person or a relative of the deceased, who is not an informant, is concerned. They are not entitled to any notice. This Court felt that the question relating to issue of notice and grant of opportunity as afore-described was of general importance and directed that copies of the judgment be sent to the High Courts in all the States so that the High Courts in their turn may circulate the same among the Magistrates within their respective jurisdictions."
9. In the case of Ram Ayodhya (supra), it has been held as under:
"7. The law in regard to the protest petition is also well settled. If any protest petition is filed against the final report, the Magistrate may proceed to examine the matter on the basis of materials collected during the investigation and to see whether or not any case for taking cognizance of the offence is made out from the materials collected during the investigation. If a prima facie case is made out, the Magistrate may take cognizance of the offence under section 190 (1) (b) of Code and reject the final report. But if such materials do not make out any case for taking cognizance of the offence, the Magistrate may, in that situation, treat the protest petition as complaint. If any protest petition is treated as complaint, it should be dealt with in accordance with Chapter XV of Code.
8. It is also equally well settled that at the stage of taking cognizance of an offence, the Magistrate is not required to examine thoroughly the merits and demerits of the case and to record a final verdict. At that stage he is not required to record even reasons, as expression of reasons in support of the cognizance may result in causing prejudice to the rights of the parties (complainant or accused) and may also in due course result in prejudicing the trial. However, the order of the Magistrate must reflect that he has applied his mind to the facts of the case. In other words at the stage of taking cognizance what is required from the Magistrate is to apply his mind to the facts of the case including the evidence collected during the investigation and to see whether or not there is sufficient ground (prima facie case) to proceed with the case. The law does not require the Magistrate to record reasons for taking cognizance of an offence."
10. Thus it is apparent that in case after investigation police files a final report, the Magistrate has jurisdiction to take cognizance under Section 190(i)(b) Cr.P.C and can summon the accused person/s. In the instant case, it is apparent that after going through the record and case diary, the court below has held that necessary ingredients of the offences in question are satisfied and a case for alleged offences is made out on the basis of material collected during investigation and passed the impugned summoning order by taking cognizance under section 190(1)(b) Cr.P.C. The perusal of record shows that the court below has considered the allegations made in FIR as well as the statements of witnesses recorded during investigation and has noted several illegalities and irregularities in process of granting patta of disputed land in favour of applicant and has rendered the finding that applicant and co-accused persons have tried to usurp the land of gram sabha and of other leaseholders/tenure holders. It was found that during investigation, opposite party no. 3 has made a statement in respect of allegations made in FIR and he has also submitted documentary evidence, but despite that the Investigating Officer has submitted final report ignoring the same. While considering the matter, learned court below has relied upon the case of Pakhandu And Others v. State of U.P. And Others reported in 2001 (13) ACC 1096. The impugned order was passed after following due procedure of law. It was also alleged that the names of accused persons also figure in the last of Anti-Bhu-mafia Task Force and that the land in question is a public land, which was meant for allotment for landless farmers. It was also observed by the court below that the applicant and co-accused persons were not landless, but by concealing the material facts, they got the patta of disputed land in their favour and accordingly, this case was registered by the concerned S.D.M.
11. So far this contention is concerned that opposite party no. 3 is not an aggrieved person, it may be noticed that he has been shown a resident of village panchayat Hamidpur, district Aligarh and he was a member of gram panchayat and that his statement was recorded during investigation thus, in respect of public land of gram panchayat, it cannot be said that he has no locus to challenge the final report submitted by police. It is also apparent from record that there is material in case diary, particularly the statement of opposite party No. 3, recorded under section 161 CrPC, so as to justify the summoning of applicant and taking cognizance under section 190(1)(b) Cr.P.C. The contention of learned senior counsel that no evidence was collected during evidence or that the impugned order was passed merely on the basis of allegation made in protest petition, has no force. It is correct that the patta of disputed land in favour of applicant was made on the basis of proposal put up by gram sabha and that patta has been upheld by the revenue authorities, but the case of prosecution is that while obtaining the said patta, the material facts were concealed by the applicant and that she has submitted forged documents showing her false address. Even if the said patta has not been cancelled so far, though it was submitted by learned counsel for opposite party no. 3 that the process of cancellation of patta is in progress, it would not be a bar to initiate the criminal proceedings against the applicant.
12. Learned Senior counsel has relied case of Iqbal Ahmad Qureshi (supra), but in that matter finding of forgery was recorded in proceedings under Section 33 of the Land Revenue Act on the basis of ex-parte order and the Hon'ble Apex Court has held that an right vested in a person cannot be dislodged without complying with the principles of natural justice. In the instant matter the allegations against the applicant are that she was not entitled for getting the 'patta' of public land in dispute but she secured the same on the basis of forgery in documents and concealing the material facts. Further, if a right is vested or secured in favour of a such person by way of cheating and forgery, in appropriate cases the criminal proceedings for the offences of such cheating and forgery may proceed even if such a vested or secured right has not been undone or canceled by competent civil or revenue authorities. Thus, the case law cited by learned Senior counsel does not help the case of applicant.
13. Similarly, the case of Om Prakash Verma (Supra), relied upon by learned Senior counsel for the applicant, pertains about the procedure and mechanism to take action not only to evict the illegal occupants from gaon sabha land but also to refrain any person from misappropriation and wrongful occupation of all gaon sabha lands. In the instant case, as observed earlier, the substance of allegations of prosecution is that concealing the fact that the applicant was not a landless farmer, she secured the alleged patta of disputed land by way of cheating and forged documents and showing herself to be a resident of another village and that the disputed land was not meant for allotment to such persons. Merely because the applicant has not been evicted so far by following the procedure prescribed under U.P.Z.A. & L.R. Act or U.P. Revenue Code, it would not be a bar to initiate the proceedings against the applicant in view of specific facts and circumstances of the case. In fact, in the instant case, most of the arguments raised by learned senior counsel for the applicant call for determination on questions of fact, which may be adequately adjudicated upon only by the trial court and even the submissions made on the point of law can also be more appropriately gone into only by the court below. Adjudication of question of facts and appreciation of evidence or examining the credibility of witnesses, does not fall within the jurisdiction under Section 482 Cr.P.C.
14. Considering the entire facts of the matter, this court is of the view that there are no good grounds to interfere with the impugned order in exercise of powers under Section 482 Cr.P.C. There is nothing to indicate that there has been any abuse of process of court or that such interference is required to secure the ends of justice. No patent illegality or perversity could be shown in the impugned order. Thus, the instant application under Section 482 Cr.P.C. has no substance and the same is accordingly dismissed.
Order Date :- 22.10.2020 Anand